By Dr. Gyan Pathak
Though the advisory opinion given by the five-judges Constitution Bench of the Supreme Court of India led by the Chief Justice B R Gavai under Articles 143 of the Constitution of India is not binding, it is likely to have far reaching implications influencing the future conducts of the Executive, the Judiciary, the Governors, and the President of the country, apart from the political conducts of the ruling parties in the states and the Centre. It is simply because, the Supreme Court’s opinion carries significant weight of a constitutional authority.
The judgement has come today November 20, 2025on the Presidential Reference that sought clarification around whether judiciary can set timelines for the President and Governors of the States to act on bills. The reference was made in the context of an earlier judgement of April 11, 2025 of a Division Bench of the Supreme Court comprised of Justices JB Pardiwala and R Mahadevan in the State of Tamil Nadu vs the Governor of Tamil Nadu and others. The Division Bench had set a guideline including timeline for governors for actions on bills passed by the Legislature of the State.
It is important to mention here that the Constitution Bench had already clarified that it was only giving an “advisory opinion” under Article 143, but not functioning as an appellate body over its earlier division-bench, that had fixed a timeline of 3-months, and failure to comply with the timeline would result in a deemed assent.
Now the Constitution Bench comprised of CJI B R Gavai and Justices Surya Kant, Vikram Nath, PS Narasimha and Atul S Chandurakar held that the timeline set by the previous judgement as well as “deemed assent” to bills amount to usurping the powers of the Governors and President by the Court and the same is not permissible.
The Constitution Bench reasoned that such usurpation of powers of the Governor or President violates the constitutional separation of powers. It said that the Governor’s discretion under Article 200 is justiciable to some extent, but with limits. The Governors cannot withhold assent indefinitely, but the Court won’t micromanage how fast exactly assent must be given via rigid time-bound orders. Nevertheless, the Bench also underscored that Article 361, relating to immunity of Governors, does not completely shield the Governor from judicial review in respect of assent power.
However, the Constitution Bench said that the actions of President or Governors with respect to a bill cannot be agitated before Court. Action before court or judicial review will lie only when the bill becomes law. It also clarified if the Governor does not act within a reasonable timeline under Article 200, then constitutional court can exercise limited judicial review. Courts can then issue a limited direction to Governor to act under Article 200 within a reasonable time limit, without making observation on merits of discretion. Obviously, the advisory opinion will shape the future with both risks and benefits.
By rejecting strict timeline, the Constitution Bench restores a significant measure of discretion to Governors and the President. It will give more breathing room to them in handling the legislations sent to them for assent.
As for separation of powers which the Constitution Bench upheld, gives signal to the courts that they can’t overstep and micromanage executive functions. It reinforces the perceived traditional constitutional design and therefore it goes against the judicial activism.
It may be beneficial in a sense, especially if we presume that all the actors will act without malice. However, in real politics, we have seen how the constitutional posts of Governors are misused by the Centre to disturb the opposition ruling the states. Clearly, we may be running a risk of delay or foot-dragging. Without clear deadlines, there’s a risk that some Governors may again delay assent to politically inconvenient bills — especially in states where the Governor and the state government are of opposing political parties. The judgment doesn’t entirely remove the problem of “pocket veto” or stalling, unless other mechanisms (political or legal) check it.
Although the Court allows some judicial scrutiny, its refusal to mandate strict timelines may limit remedies for states that feel blocked by the Governor’s inaction. States may find it harder to force the hand of their Governor.
The current advisory opinion strengthens the formal constitutional role of Governors and the President. In practice they have been seen as a rubber stamp of the executive either of Centre or of the States. While the Bench has recognised greater autonomy to them which can guard against political interference, it also raises concerns about their accountability. If Governors and President start delaying bills indefinitely, but within a “reasonable” but unspecified time, how will they be held accountable? Such situation may increase tension between the states and their governor, or even between the Centre and the President.
It is sure, that the current judgment will boost the institutional confidence of the Governor and the President. In reverse, they may develop an attitude of less concerned by judicial intervention or directives or deadlines. This situation may add to problems. Only protection against developing such attitude is that the present judgement does clarify that the immunity of the Governor or the President is not absolute, and their decisions about withholding or reservation can be questioned although not micromanaged.
The judgement will also impact the functioning of the judiciary itself. It has not overturned its own prior judgement, but given “advisory opinion only”. By doing so it reaffirmed their respect for the balance of power between the judiciary and the executive. It respected the constitutional posts. Nevertheless, it will impact the future cases of such nature, especially on account of limited power of the courts to enforce prompt governance.
The opinion of the Constitution Bench will have significant impact on Centre-State relationship and may impact federalism. As per the opinion, though Governors may not arbitrarily delay bills, but the absence of strict judicial deadlines means states cannot fully rely on the courts to force assent. Central government will feel reassured in politically misusing Governors against opposition ruled states retaining more strategic discretion. Since the Bench has refused to impose timeline, India is likely to have more of such political conflicts on bills.
In brief, the judgement of the Constitution Bench is bound to ignite fresh debate on the issue, since it is double-edged but a nuanced outcome of the Presidential Reference. On one hand, it restrains judicial overreach and upholds the dignity and autonomy of Governors and the President; on the other, it leaves open risks of delay, ambiguity, and political manoeuvring. The long-term impact will depend heavily on how political actors, both at Centre and states, respond – whether they lean into constitutional dialogue, or use discretionary authority in more adversarial ways. (IPA Service)
